Terms of Service

TERMS OF SERVICE

Effective Date: August 21, 2016

Welcome to BRAINWELL®, a service operated by Monclarity LLC (“Monclarity” or “we” or “us”). Please read carefully the following terms and conditions (this “Agreement”) governing your use of BRAINWELL® online at www.brainwell.com (the “Site”) and on mobile devices (collectively, “BRAINWELL®” or the “Service”). As used in this Agreement, the term “Affiliated Parties” of Monclarity means its officers, directors, members, agents, representatives, contractors, employees, licensors and assignees.

BY CREATING AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE OR PURCHASE THIS SERVICE. We may modify this Agreement from time to time. When changes are made, we will make the revised version available on the Site, and will indicate at the top of this page the date that revisions were last made. YOUR USE OF THE SERVICE AFTER SUCH POSTING WILL CONSTITUTE ACCEPTANCE BY YOU OF SUCH CHANGES.

2. Your BRAINWELL® Account. Although you may freely visit the Site, to use the Service you must create a BRAINWELL® account, which requires you to provide us with information about yourself, including an email address and a password. By doing so, you agree to receive communications from us to the email address you provided. You may opt out of receiving some email correspondence from us, but some account-related communication must and will continue to be sent to your email address.

3. Intellectual Property and Ownership of BRAINWELL®. The Service, including without limitation, its content (other than User Content described below), design and layout, underlying software, data and algorithms, are the exclusive property of Monclarity or its licensors and are protected by U.S. and international intellectual property rights, including without limitation, copyright, trademark rights and trade secret rights. The trademarks “BRAINWELL®,” “MONCLARITY” and the MONCLARITY logo are owned by Monclarity. Any other trademarks, service marks, logos and/or trade names appearing on the Service are the property of their respective owners.

4. License to Use BRAINWELL® is subject to the terms and conditions of these Agreement, we grant you a limited, non-exclusive, non-sublicenseable, non-transferable, revocable license to use the Service for personal, non-commercial use only. This license is valid so long as your account has not been terminated by us or by you, or you are not barred from the Service by applicable law. If this Agreement is not enforceable where you are located, you may not use the Service.

5. User Content. The Service may enable you to post or submit content and materials for publication (“User Content”). By posting User Content, you represent to us that you own or have sufficient rights to the User Content, and you grant to us the right to use, reproduce, modify, adapt and publish the User Content for the purpose of offering the Service.

6. Restrictions. You agree to the following restrictions in your use of the Service:

a. You may not redistribute, decompile, reverse engineer, publish, or redistribute the Service or its underlying technology or content;

b. You may not use the Service for any purpose other than your personal, non-commercial use;

c. You may not use the Service for the purpose of creating or maintaining a competitive product or service;

d. You may not interfere with rights of other users to use the Service;

e. You may not use the Service for any unlawful purpose;

f. You may not impersonate another person or use another user’s account information without permission;

g. You may not violate our security features, including without limitation, logging into a server that you are not authorized to access, probing the vulnerability of our systems and networks, or otherwise transmitting to or through the Service material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and

h. You may not post, transmit or otherwise make available through the Service any information or other material that: (i) infringes or otherwise violates the rights of any third parties; or (ii) is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, or contain pornography or racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material that encourages conduct that would constitute a criminal offense.

If you violate any of the foregoing restrictions, we may immediately terminate your BRAINWELL® account, and you may also be subject to civil or criminal penalties.

7. Third Party Sites. The Service may include links to other websites or applications, or functionality to connect with other websites (each, a “Third Party Site”) or advertisements. We do not control or endorse any Third Party Site or advertisements, and we are not responsible for any content, product, advertising and other materials presented in or provided by such Third Party Site or advertisement. Your use and access of a Third Party Site is at your own risk, and is subject to the terms and conditions for such Third Party Site.

8. Termination.

a. By Monclarity. We may terminate or suspend your right to use the Service at any time for any or no reason by providing you with written or email notice of such termination or suspension, and such termination or suspension shall be effective immediately upon delivery of such notice. If we terminate or suspend your right to use the Service without cause, we will refund to you a pro-rated portion of the fees you have paid for the Service.

b. By You. You may cancel your account and terminate this Agreement at any time by contacting Customer Service; however, you will not receive a refund.

c. Effect of Termination. All sections that by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.

9. Disclaimer of Warranties and Limitations of Liability. PLEASE READ THIS SECTION CAREFULLY. THIS SECTION LIMITS THE LIABILITY OF MONCLARITY AND ITS AFFILIATED PARTIES. EACH OF THE SUBSECTIONS BELOW APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

a. "As-Is" Basis. MONCLARITY PROVIDES THE SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK.

b. No Warranties.

i. MONCLARITY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE (OR ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICE) OR USER CONTENT, AND WE HEREBY EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICE (OR ANY INFORMATION MADE AVAILABLE THROUGH THE SITE) OR USER CONTENT.

ii. WE DO NOT WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY INFORMATION AND MATERIALS ON THE SERVICE. USE OF THE BRAIN EXERCISE GAMES OFFERED ON THE SERVICE HAS NOT BEEN DEFINITIVELY PROVEN TO IMPROVE COGNITIVE FUNCTION.

iii. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICE OR THAT INFORMATION ON THE SERVICE WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, AVAILABLE, ACCURATE, OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED.

iv. BRAINWELL IS NOT A MEDICAL SERVICE. IT IS NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY MEDICAL DISEASE OR DISORDER, AND IT IS NOT INTENDED AS A SUBSTITUTE FOR MEDICAL ADVICE AND TREATMENT BY A MEDICAL PROFESSIONAL.

c. Release. YOU AGREE TO RELEASE MONCLARITY AND ITS AFFILIATED PARTIES FROM ANY CLAIMS, DEMANDS, DAMAGES, LIABILITY, COSTS OR EXPENSES, OF EVERY KIND AND NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICE.

d. Limitation of Liability. IN NO EVENT WILL MONCLARITY OR ITS AFFILIATED PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICE.

e. Maximum Liability. WITHOUT LIMITING ANY OTHER PROVISION IN THIS AGREEMENT, MONCLARITY’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES YOU SUFFER IN CONNECTION WITH THE SERVICE IS LIMITED TO THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO MONCLARITY IN CONNECTION WITH THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (II) $100.

f. Sole And Exclusive Remedy. YOUR ONLY RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICE OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION OF YOUR ACCOUNT AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICE.

10. Indemnification. You agree to indemnify, defend and hold harmless Monclarity and its Affiliated Parties from and against any and all claims, losses, expenses, demands or liability, including attorneys' fees and costs incurred by Monclarity and its Affiliated Parties in connection with any claim by a third party (including an intellectual property claim) arising out of (i) your use or misuse of the Service, (ii) any User Content you submit, post or transmit through the Service, (iii) your violation of this Agreement or your violation of any rights of a third party, or (iv) your violation of any applicable law, rules or regulations. You agree that you will cooperate as reasonably requested by Monclarity in the defense of such claims. Monclarity and its Affiliated Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

11. Digital Millennium Copyright Act. Monclarity respects the intellectual property rights of others and expects its users to do the same. We may remove content that, in our view, appears to infringe the intellectual property rights of others. In addition, Monclarity, in its sole and absolute discretion, may terminate the right to use the Service of any user who infringes the intellectual property rights of others. If you believe any materials on the Service infringe your copyright, you may request removal of those materials from the Service by contacting Monclarity’s copyright agent (identified below) and providing the following information: (i) identification of the copyrighted work that you believe to be infringed (please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work); (ii) identification of the material that you believe to be infringing and its location (please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material); (iii) your name, address, telephone number and (if available) e-mail address; (iv) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; (v) a statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf; and (vi) a signature or the electronic equivalent from the copyright holder or authorized representative. Submit information to:

a. Arbitration and Class Action Waiver. Any legal controversy or legal claim arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered into by any court having jurisdiction thereof. Monclarity may seek any interim or preliminary relief from a court of competent jurisdiction in San Francisco, California, necessary to protect the rights or property of Monclarity pending the completion of arbitration. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. Should either party file an action contrary to this provision, the other party may recover costs and attorneys’ fees reasonably incurred in challenging such action. YOU AND MONCLARITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE WITH MONCLARITY THAT NEITHER YOU NOR MONCLARITY WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; THAT NEITHER YOU NOR MONCLARITY WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE; AND BOTH PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.

b. Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. If the Arbitration provision of this Agreement in Section 12(a) shall be found to be unlawful, void or for any reason unenforceable, then any lawsuit or claim arising out of this Agreement shall be brought in the federal or state court located in San Francisco, California.

c. No Joint Venture or Partnership. Nothing in this Agreement is intended to or should be construed as creating an agency, partnership, joint venture, employer-employee or contractor relationship between you and Monclarity.

d. Severability. If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention, and all remaining provisions of this Agreement shall remain in full force and effect.

e. Waiver. No waiver of any breach of any provision of these Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

f. Complete Agreement. This Agreement contain the entire agreement between you and Monclarity regarding the use of the Service, and supersede any prior agreement between you and Monclarity on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not contained in this Agreement.

g. Contact Information. If you have any questions or need further information as to the Service, or need to notify Monclarity as to any matters relating to the Service, please contact us at: